Commonwealth of Kentucky: Codification and Incorporation by Reference of Approved State Underground Storage Tank Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The Resource Conservation and Recovery Act of 1976 (RCRA), as amended, authorizes the Environmental Protection Agency (EPA) to grant approval to States to operate their underground storage tank (UST) programs in lieu of the Federal program. The Commonwealth of Kentucky (Commonwealth or State) applied to the EPA for final approval of its UST Program on October 7, 2019, and on September 16, 2020, the EPA published a final determination and approval of the Commonwealth's UST Program. This action codifies the EPA's prior approval of the Commonwealth's UST Program, and incorporates by reference approved provisions of the State's statutes and regulations.

DATES:

This rule is effective March 28, 2022, unless the EPA receives adverse comment by February 24, 2022. If the EPA receives adverse comment, it will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of March 28, 2022.

ADDRESSES:

Comments may be submitted by one of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov (our preferred method). Follow the online instructions for submitting comments.

• Email: singh.ben@epa.gov. Include the Docket ID No. EPA-R04-UST-2020-0696 in the subject line of the message.

Instructions: Submit your comments, identified by Docket ID No. EPA-R04-UST-2020-0696, via the Federal eRulemaking Portal at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from https://www.regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit: https://www.epa.gov/dockets/commenting-epa-dockets.

Out of an abundance of caution for members of the public and our staff, the public's access to the EPA Region 4 Offices is by appointment only to reduce the risk of transmitting COVID-19. We encourage the public to submit comments via https://www.regulations.gov or via email. The EPA encourages electronic comment submittals, but if you are unable to submit electronically or need other assistance, please contact Ben Singh, the contact listed in the FOR FURTHER INFORMATION CONTACT provision below. The index to the docket for this action is available electronically at https://www.regulations.gov. The documents that form the basis of this codification and associated publicly available docket materials are available for review on the https://www.regulations.gov website. The EPA encourages electronic reviewing of these documents, but if you are unable to review these documents electronically, please contact Ben Singh to schedule an appointment to view the documents at the Region 4 Offices. Interested persons wanting to examine these documents should make an appointment at least two weeks in advance. The EPA Region 4 requires all visitors to adhere to the COVID-19 protocol. Please contact Ben Singh for the COVID-19 protocol requirements prior to your appointment.

Please also contact Ben Singh if you need assistance in a language other than English or if you are a person with disabilities who needs a reasonable accommodation at no cost to you. For further information on the EPA Docket Center services and the current status, please visit us online at https://www.epa.gov/dockets.

The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention, local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.

FOR FURTHER INFORMATION CONTACT:

Ben Singh, RCRA Programs and Cleanup Branch, Land, Chemicals and Redevelopment Division, U.S. Environmental Protection Agency, Region 4, Atlanta Federal Center, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960; Phone number: (404) 562-8922; email address: singh.ben@epa.gov. Please contact Ben Singh by phone or email for further information.

SUPPLEMENTARY INFORMATION:

I. Codification

Codification is the process of placing citations and references to a State's statutes and regulations that comprise a State's approved UST program into the Code of Federal Regulations (CFR). The EPA codifies its approval of State programs in 40 CFR part 282 and incorporates by reference State statutes and regulations that the EPA can enforce, after the approval is final, under sections 9005 and 9006 of RCRA, and any other applicable statutory provisions. The incorporation by reference of the EPA-approved State programs in the CFR should substantially enhance the public's ability to discern the status of the approved State UST programs and State requirements that can be federally enforced. This effort provides clear notice to the public of the scope of the approved program in each State.

A. For what has the Commonwealth previously been approved?

On September 16, 2020, the EPA published a notice in the Federal Register announcing its decision to grant final approval to the Commonwealth to operate its UST Program as described in an October 7, 2019 State Application (85 FR 57754). The State UST Program regulations were amended effective April 5, 2019, and included revisions which correspond to the EPA final rule published on July 15, 2015 (80 FR 41566), which revised the 1988 UST regulations and the 1988 State program approval (SPA) regulations (2015 Federal Revisions). As a result of the EPA's approval, these provisions became subject to the EPA's corrective action, inspection, and enforcement authorities under RCRA sections 9003(h), 9005, and 9006, 42 U.S.C. 6991b(h), 6991d, and 6991e, and other applicable statutory and regulatory provisions.

B. What codification decision has the EPA made in this rule?

In this rule, the EPA is finalizing regulatory text that incorporates by reference the federally approved Kentucky UST Program. In accordance with the requirements of 1 CFR 51.5, the EPA is incorporating by reference the Commonwealth's statutes and regulations as described in the amendments to 40 CFR part 282 set forth below. These documents are available through https://www.regulations.gov. This codification reflects the State UST Program in effect at the time the EPA granted its approval of the Kentucky UST Program, and only the EPA-approved provisions of the Kentucky UST Program will be incorporated by reference.

To codify the EPA's approval of Kentucky's UST Program, the EPA has added section 282.67 to Title 40 of the CFR. More specifically, in 40 CFR 282.67(d)(1)(i), the EPA is incorporating by reference the EPA-approved Kentucky UST Program. Section 282.67(d)(1)(ii) identifies the State's statutes and regulations that are part of the approved State UST Program, although not incorporated by reference for enforcement purposes, unless they impose obligations on regulated entities. Section 282.67(d)(1)(iii) identifies the State's statutory and regulatory provisions that are broader in scope or external to the State's approved UST Program and therefore not incorporated by reference. Section 282.67(d)(2) through (d)(5) reference the Attorney General's Statement, Demonstration of Adequate Enforcement Procedures, Program Description, and Memorandum of Agreement, which are part of the State Application and part of the UST Program under subtitle I of RCRA.

C. What is the effect of the EPA's codification of the federally approved Kentucky UST Program on enforcement?

The EPA retains the authority under sections 9003(h), 9005, and 9006 of subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d, and 6991e, and other applicable statutory and regulatory provisions, to undertake corrective action, inspections, and enforcement actions, and to issue orders in approved States. If the EPA determines it will take such actions in Kentucky, the EPA will rely on Federal sanctions, Federal inspection authorities, and other Federal procedures rather than the State analogs. Therefore, the EPA is not incorporating by reference the Commonwealth's procedural and enforcement authorities, although they are listed in 40 CFR 282.67(d)(1)(ii) and were previously considered by the EPA in determining the adequacy of Kentucky's enforcement authority. The Commonwealth's authority to inspect and enforce the State's UST Program continues to operate independently under State law.

D. What State provisions are not part of the codification?

Some provisions of the State's UST Program are not part of the federally approved State UST Program. Where an approved State program has provisions that are broader in scope than the Federal program, those provisions are not a part of the federally approved program. As a result, State provisions which are broader in scope than the Federal program are not incorporated by reference for purposes of enforcement in part 282. See 40 CFR 281.12(a)(3)(ii). In addition, provisions that are external to the State UST Program approval requirements, but included in the State Application, are also being excluded from incorporation by reference in part 282. For reference and clarity, 40 CFR 282.67(d)(1)(iii) lists the Kentucky statutory and regulatory provisions which are broader in scope than the Federal program or external to State UST program approval requirements. These provisions are, therefore, not part of the approved UST Program that the EPA is codifying. Although these provisions cannot be enforced by the EPA, the State will continue to implement and enforce such provisions under State law.

E. Why is the EPA using a direct final rule?

The EPA is publishing this direct final rule without a prior proposed rule because we view this action as noncontroversial and anticipate no adverse comment. Notice and opportunity for comment were provided earlier on the EPA's decision to approve the Kentucky program, and the EPA is not now reopening that decision nor requesting comment on it.

F. What happens if the EPA receives comments that oppose this codification?

Along with this direct final rule, the EPA is simultaneously publishing a separate document in the “Proposed Rules” section of this Federal Register that serves as the proposal to codify the State's UST Program, and provides an opportunity for public comment. If the EPA receives comments that oppose this codification, the EPA will withdraw this direct final rule by publishing a document in the Federal Register before it becomes effective. The EPA will make any further decision on codification of the State UST Program after considering all comments received during the comment period. The EPA will then address all public comments in a later final rule.

II. Statutory and Executive Order Review

This action merely codifies Kentucky's UST Program that the EPA has previously approved pursuant to RCRA Section 9004 and does not impose additional requirements other than those imposed by State law. For these reasons, this action:

• Is not a significant regulatory action and has been exempted from review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a “significant regulatory action” under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Is not subject to the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with RCRA;
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994); and
• Does not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. The rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This final action will be effective March 28, 2022.

List of Subjects in 40 CFR Part 282

• Administrative practice and procedure
• Environmental protection
• Hazardous substances
• Incorporation by reference
• Petroleum
• Reporting and recordkeeping requirements
• State program approval, and Underground storage tanks

Authority: This action is issued under the authority of sections 2002(a), 7004(b), 9004, 9005 and 9006 of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912(a), 6974(b), 6991c, 6991d, and 6991e.

For the reasons set forth in the preamble, the EPA is amending 40 CFR part 282 as follows:

PART 282—APPROVED UNDERGROUND STORAGE TANK PROGRAMS

1. The authority citation for part 282 continues to read as follows:

Authority: 42 U.S.C. 6912, 6991c, 6991d, and 6991e.

Subpart B—Approved State Programs

2. Add § 282.67 to read as follows:

3. Amend appendix A to part 282 by adding an entry for “Kentucky” to read as follows:

Appendix A to Part 282—State Requirements Incorporated by Reference in Part 282 of the Code of Federal Regulations

Kentucky

(a) The statutory provisions include:

(1) Kentucky Revised Statutes (KRS) Chapter 224.

224.60-100 Underground storage tanks and regulated substances defined.

224.60-105(1) Registration of underground storage tanks—Programs to regulate tanks.

224.60-115 Definitions for KRS 224.60-120 to 224.60-150.

224.60-120 Financial responsibility of petroleum storage tank owner or operator—Administrative regulations, except (6).

224.60-135(1) Corrective action for a release into the environment from a petroleum storage tank, except the second sentence in (1).

(2) [Reserved]

(b) The regulatory provisions include:

(1) 401 Kentucky Administrative Regulations (KAR) Chapter 42.

401 KAR 42:005. Definitions for 401 KAR Chapter 42.

401 KAR 42:020. UST system requirements, notification, registration, and annual fees.

Section 1. Applicability and Exclusions.

Section 2. Notification, Registration, and Annual Fees, except (1)(b), (2)-(6), and certain provisions in (7)(c), (8) and (9).

Section 3. Temporary Closure, except (1).

Section 4. Performance Standards for New UST Systems.

Section 5. Upgrading of Existing UST Systems.

Section 6. Double Walled Tanks and Piping Requirements.

Section 8. Spill Containment Devices (Spill Buckets and Catch Basins).

Section 9. Overfill Prevention Requirements.

Section 10. Under-dispenser Containment (UDC) and Sump Requirements.

Section 11. Corrosion Protection Operation and Maintenance, except certain language in (4) and (9).

Section 12. Compatibility.

Section 13. Repairs, except (2).

Section 14. Noncorrodible Piping.

Section 15. Release Detection, except (6) and (7).

Section 16. Operator Training Requirements.

Section 17. Walkthrough Inspections.

Section 19. Recordkeeping.

Section 20. Financial Responsibility.

Section 21. Lender Liability.

Section 23. Incorporation by Reference.

401 KAR 42:060. UST system release and corrective action requirements.

Section 1. Reporting for Releases, Spills, and Overfills.

Section 3. Off-Site Impacts.

Section 4. Release Investigation and Confirmation.

Section 5. Release Response and Corrective Action.

Section 6. Permanent Closure or Change in Service.

Section 10. Incorporation by Reference.

(2) [Reserved]